I've started this blog as an open forum to discuss current topics in the news in a "Point - Counter Point" manner. By using this method of debate, I seek to encourage all to lend their voices and opinions by weighing in on the current days topics up for discussion. Welcome to POINT - COUNTER POINT.

Wednesday, October 20, 2010

A recent decision by the Supreme Court in a case called City of Ontario v. Quon should be viewed as a warning in big capital letters to workers everywhere. The Supreme Court ruled that a public employer did not violate an employee's Fourth Amendment rights when it searched an employee's text messages. This decision should not really surprise anyone: When employees use company-issued equipment on company time, they should not expect their communications to be private. Nevertheless, many employees fail to heed this modern workplace reality.

In Quon, the city of Ontario, Calif., had instituted its own policy in 1999 regarding computer and e-mail usage. Employees were informed that they had no expectation of privacy in their use of the Internet and that all network activity could be monitored. They were also warned against using "inappropriate, derogatory, obscene, suggestive, defamatory or harassing language in the e-mail system." In 2001, the city issued pagers with text-messaging capabilities to members of the SWAT team, including Quon, to improve the team's communications capabilities in emergencies. While the pagers were not technically covered by the previous policy, employees were told that messages sent on the pagers would be considered the equivalent of e-mails, which were treated as public information subject to auditing.

The pagers had monthly character limits. Officers were told that they had to pay for any text messaging that exceeded the monthly limits, but if they paid the overage, their lieutenant would not review their messages. After Quon repeatedly exceeded the limit and paid the excess fees, his lieutenant decided to audit use of the pagers by Quon and another officer to determine if the character limit was set too low, or if the overage was due to personal use. While conducting this review, he discovered that most of Quon's messages were not related to work. Some sexually explicit messages were sent to his wife, his girlfriend (and co-worker) and another officer. Quon was disciplined as a result.

Quon and his messaging partners immediately filed suit claiming that their privacy rights were violated. A jury granted judgment in favor of the city. But the U.S. Court of Appeals for the Ninth Circuit reversed that decision, determining that when the city promised to refrain from auditing the messages if the overage fees were paid, an expectation of privacy was created — despite the fact that the messages were legally considered to be "public records."

The Supreme Court reversed again. The court noted that in light of the rapid changes in communications technology and in society's views of acceptable behavior, it is difficult to predict how workplace norms and societal expectations will evolve. On this basis, the court declined to establish a "bright line" rule to clarify the degree of privacy a public employee can reasonably expect. Instead, the court decided that because the city had a legitimate motivation - ensuring that employees were not being forced to pay out-of-pocket for work-related expenses or that the city was not paying excessive fees for its employees' personal communications - and conducted its review in a manner that was not excessively intrusive, the search was reasonable and the city was not liable.

For employers, the lesson is that electronic communications policies should not only be established, but should also be periodically reviewed and updated to ensure that they cover new technologies and forms of communication (such as Twitter or other social networking sites), and that they are reasonable and practical in light of society's ever-changing norms. A private employer generally has far greater latitude than a public employer when it comes to searching and monitoring employees' communications, but any search should be tailored to fit the circumstances and to avoid unnecessary intrusion into employees' personal lives.

Lessons for employees: Assume that when you communicate electronically - whether by e-mail, blog or a social networking site - you are creating a permanent record. Write every e-mail or text as if your bosses are looking over your shoulder, because there's a good chance they are. And remember that you may not be given the opportunity to explain your intentions or the context in which you made the remark. A comment made sarcastically or in jest can take on a very different meaning when viewed in isolation, and can have serious, unintended consequences. Unnecessarily cautious? This is definitely a situation in which it is always better to be safe than sorry